United States v. Gutierrez-Galvan ( 2008 )

MEMORANDUM ^**

Salvador Gutierrez-Galvan appeals from the 71-month sentence imposed following his guilty-plea conviction for transporting illegal aliens causing serious bodily injury, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), (a)(l)(B)(iii). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Gutierrez-Galvan contends that the district court erred by increasing his offense level under both U.S.S.G. §§ 2L1.1 and 3C1.2. He also contends that the district court erred when it enhanced his sentence pursuant to § 3C1.2 because it applied the enhancement based on conduct that did not create a risk of serious bodily injury. We agree that the district court erred. See United States v. Lopez-Garcia, 316 F.3d 967, 970-71 (9th Cir.2003); cf. United States v. Campbell, 42 F.3d 1199, 1205-06 (9th Cir.1994). However, we conclude that the errors are harmless because the district court stated that it would impose the same sentence even if its application of § 3C1.2 was in error. See United States v. Menyweather, 447 F.3d 625, 633-34 (9th Cir.2006).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.